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Sometimes a picture really is worth the thousand words that appear in the actual op-ed.

The irony of asserting that Shakespeare would have had any use for copyright is rich. The bard routinely stole other authors stories, characters, and conflicts, and remade them (remixed?) into the plays and language that we still read and perform today. And there is no evidence whatsoever that Shakespeare ever appealed to the copyright law of time (the so-call Royal Charter of 1557) to protect his own work. There is ample evidence that he took steps to keep his work from being stolen -- by making sure that no printer or scribe saw a full manuscript, and limiting actors to only the material they needed to properly learn and perform their parts. But copyright? No. I also suspect that were Shakespeare alive and working today, he would have been appalled by the Sonny Bono Mickey Mouse copyright extension act.

I am writing an article for the Freeman "on the recent silly examples of intellectual property claims." I know of quite a few, but I'm hoping our readers and contributors will have some good suggestions - leave a comment or send me an email (david@dklevine.com). Short deadline though, I have to have the article done by October 11.

It's right under your nose, in the form of intellectual property created by you & your lab. Don't let your invention representing millions in potential revenue sit idle simply because you aren't aware IP & patent protection laws and other key aspects of moving innovations from your lab to the market..

Because it takes well over 8 years of litigation and thousands of dollars for an Appeals Court to determine that attaching a piece of memorabilia to a trading card is 'obvious' and thus, not patentable.

But check this - one of the judges dissented from that conclusion as a matter of law. No...really. He felt it was possible for a jury to think otherwise.

My name is Luke Mroz and I am a Ron Paul supporter in NYC and a fan of your work at Mises.org. I just wanted to share a brief story with you from an event I went to last night:

Last night I attended a Comedy Central taping for a live comedian special called "Comics Anonymous" at the Union Square Theater in New York City. It was a festive event with a fun crowd of about 500 people. One of the performers was one of my favorite comedians named Robert Kelly. He told a really good joke about how he rarely used the word love because it loses its strength if you use it to much. When his wife tells him she loves him, he shrugs it off. When his father told him he loved him, for the first time in his adult life when he graduated high school, he feigned breaking down into tears and acting like an emotional wreck. While doing this, he feigned being hugged and sang the phrase "We are the world". He then went on to his next joke.

After another comedian, the taping ended. We were informed that the crowd had to stay put because Bob Kelly had to come out and re-film a joke. It was the joke I just mentioned. They said it had to be re-taped because Comedy Central didn't have the rights to the song "We Are The World". (My guess is it probably wasn't worth it to them to obtain the rights, for 1 or 2 seconds of a joke). How ridiculous is this? FOUR WORDS! We then had to hear the same joke, slightly modified, again, and pretend and cheer for it like we never heard it before. I am interested in seeing the final edited product, whenever it eventually airs.

The South Butt is the local case of a Missouri teeanager, Jimmy Winkelmann, frustrated with his classmates' sheep-like following of a popular clothing line. Jimmy came up with his own parody apparel and now faces a lawsuit for trademark infringement.

The North Face filed the lawsuit, claiming that The South Butt is confusingly similar to The North Face, in violation of North Face's trademark rights.

Now Jimmy has filed a biting and hilarious response. In the response, he mocks The North Face, its products and customers (para. 23, II.5-7), its hypocrisy (North Face's owner, VF corporation, "formerly known as Vanity Fair Corporation, not to be confused with the Conde Naste publication of the same name), and its contentions that the public can't tell a butt from a face, calls them "socialist" (para. 37) and bully-like (para. III.2), trumpets "freedom of speech," "the American Way," and the "pursuit of the American Dream" (para. III.2), thanks The North Face for the free publicity (para. 50), and he mentions that he "has initiated an Internet challenge through Facebook designed to hone the skills of the general purchasing public to discern the difference between a face and a butt" (see North Face Lawsuit Against South Butt Going Viral With Facebook App).

Good for Jimmy, and here's hoping he triumphs--though, unfortunately, the trademark cause of action known as "dilution" does not require a showing of consumer confusion, as noted on the Patently-O blog. This is yet another reason why not only patent and copyright law have to go: trademark law is flawed too. As I discuss in Against Intellectual Property (pp. 58-59), the only sound basis for trademark law is fraud. But this would mean that it is the defrauded consumer who has the cause of action, not the trademark holder. Even if you say that the trademark holder has implicit consent of the class of defrauded consumers to sue on their behalf, (a) this would cover only cases of true consumer fraud, not knockoffs where the consumer knows full well she is buying a fake rolex or purse; and (b) it would not include antidilution rights. If Jimmy loses here, it will probably be because of the antidilution cause of action; this is one reason I recommend abolishing it in my list of IP reforms in Reducing the Cost of IP Law.

In a previous post, I noted the arbitrariness of copyright law in prohibiting editing a DVD to take out objectionable scenes, when presumably it would be legal to accomplish the same thing by other means-e.g., as I pointed out in a legal forum, by providing instructions to users to use to program a special DVD player that edits out the bad scenes "on the fly" in the user's home.

Turns out there is such a service: Clear Play (thanks to Tom Woods for the link). You buy one of their DVD players, and load into it "filters" which you can download from the web with a subscription to their service. Amazingly, there was apparently some doubt about the right of consumers to do this, even for private use, so the Family Entertainment and Copyright Act of 2005 was passed last year to amend the Copyright Act to make it clear that it is not a copyright infringement to use technological means (such as ClearPlay's DVD player and filter service) to skip objectionable material, such as profanity, violence, or other adult material, in the audio/video works that they legally purchased.

Gee, Congress, we're so grateful, so very grateful, that you are permitting us to fast forward and skip nudity, gore, and profanity, or other scenes we don't want to show, in our own homes, using our own DVD players. How generous of you. Is it okay if I skip commercials too, please? (Apparently, an earlier version of this bill contained "language that might make users and manufacturers of ad-skipping technology automatically liable for copyright infringement".)

Tom, I too (as an IP attorney) find the copyright decision to be somewhat bizarre. In Clean Flicks v. Steven Soderbergh, a "federal district court in Utah held that companies that "sanitize" … motion pictures by removing sex, profanity, and violence, violate the motion picture studios' copyright."

The court thought it was an easy case, apparently. So does this law professor, who said "This case was about as straightforward a copyright case as there can be, and the court's determination is plainly correct".

As the court wrote:

CleanFlicks first obtains an original copy of the movie from its customer or by its own purchase from an authorized retailer. It then makes a digital copy of the entire movie onto the hard drive of a computer, overcoming such technology as a digital content scrambling protection system in the acquired DVD, that is designed to prevent copying. After using software to make the edits, the company downloads from the computer an edited master copy which is then used to create a new recordable DVDR to be sold to the public, directly or indirectly through a retailer. Thus, the content of the authorized DVD has been changed and the encryption removed. The DVDR bears the CleanFlicks trademark. CleanFlicks makes direct sales and rentals to consumers online through its website requiring the purchaser to buy both the authorized and edited copies. CleanFlicks purchases an authorized copy of each edited copy it rents. CleanFlicks stops selling to any retailer that makes unauthorized copies of an edited movie. … CleanFilms maintains an inventory of the unedited versions of the copies it rents or sells to its members in a one-to-one ratio. [italics added]

Note that CleanFilms buys one copy for every edited (sanitized) copy they rent. It seems to me, therefore, that this is just the digital version of physically removing parts of an analog movie on videotape. For example, suppose CleanFilms bought 1000 VHS tape versions of a movie, and physically removed lengths of tape that had nudity, then spliced it back together. Or, what if they just put white tape over the nudity-section of the film, or "erased" those lenghts of tape, then re-sold the VHS tape. Or what if technology were developed that let them shoot a laser into the DVD and basically just blot out the sections of video that contained nudity? Could it be argued that any of this is is copying or reproducing the movie? If not, why is the digital version of this any different? The fact that copyright law treats them differently shows how arbitrary and unjust it is.

It is clear to anyone who pays attention that IP is under assault--both institutionally, as digital copying, encryption, distributed information, the Internet, and the inherent impotence of IP policing make attempts to monopolize information patterns increasingly futile; and intellectually, as more and more people, especially libertarians--and especially younger libertarians--see the injustice of IP made manifest and obvious. There is a growing body of work that explodes the myths--moral and utilitarian, principled and empirical--of the IP proponents (see the works listed at the final section of "The Case Against IP: A Concise Guide"). There has been a noticeable and growing migration of libertarians toward the anti-IP position. I have lost count of the number of people who have personally told me they have seen the light on the IP cause in recent years. Among the radical and principled libertarians I know, there is a lot of debate about a lot of things--abortion, federalism, activism, "thickism," left- vs. right-, etc.--but on two issues there is a striking degree of agreement: these are anarchy, and intellectual property. That the state, and IP, are unjust, seem obvious to them after a little reflection. More and more libertarians are realizing that the case for IP being part of legitimate property rights is a hollow one that never needed to be accepted (see Have You Changed Your Mind About Intellectual Property?).

So it is no surprise that Objectivists would be distressed by this phenomenon. Not only are they among the most ardent modern advocates of intellectual property (in addition to Andrew J. Galambos [see Against Intellectual Property], and perhaps J. Neil Schulman), but Rand in a sense built her entire philosophical edifice on IP: to-wit, Rand incredibly said that "patents are the heart and core of property rights" and Objectivist law professor Adam Mossoff explicitly claims that "All Property is Intellectual Property" (see Objectivists: "All Property is Intellectual Property"). And so, realizing Rand's arguments for IP are deeply flawed, and that fewer and fewer people are buying it, they are starting to fight back.

(Aside: Long's comments are really superb and insightful. A few comments. Discussing the IP comments of another author, Long writes, "a strong case can be made for thinking that Lockean principles must be substantially distorted in order to press them into service on behalf of IP". Long backs this up very ably. In the same article he makes an illuminating distinction between three conceptions of "capitalism" that helps to dispel the confusion among both right and left in addressing this issue.)

The Objectivist approach is mired in a number of problems. It anchors property rights to the idea of "creation"; it requires legislation, and the state; it believes in some intrinsic value and some property right in value; it advocates utterly arbitrary and/or unprincipled, utilitarian finite lengths for IP; it rests on an arbitrary distinction between discovery and innovation. In a world where we took the ideas of the IP advocates seriously patent and copyright would have to have infinite duration. And the gaps in coverage would be fixed, and the state's arbitrary exceptions fixed, such as the "fair use defense" to copyright. At present patent and copyright cover a statutory class of "inventions" and artistic works, respectively. Many logos, idea-patterns, "creations," values are not protected at present. These include: perfume smells, the fashion industry, food recipes, certain business methods, databases (unoriginal but useful collections of information), abstract ideas such as mathematical algorithms, proofs, and techniques and physical laws. Under the ideas of the IP fanatics, there is no reason not to grant state-monopolies to these patterns too. And the term should not expire in 20 or 100 years--does your property to your house expire after some time limit? And why the utilitarian fair use exception? No principled case for IP could tolerate it.

I would love to see libertarian IP advocates have to live in a world that truly implemented their IP views fully, consistently--it would be like a communist USSR stripped of its power to ape Western price structures, to ameliorate the effects of communism. They would either die out, as the material world was strangled by an impossible nettle of ghostly IP-rights tendrils, or they would cry uncle. Even today, one imagines the cognitive dissonance of Objectivists living in our digital age--cutting and pasting, linking, learning and reworking ideas of others--all the while maintaining that all the things they themselves cannot but help engage in are "immoral" or some such tedious nonsense. I think of modern do-gooder environmentalists--they must feel pangs of guilt while flying on a jumbo jet to a friend's wedding 2000 miles away, or to attend UN conference or job posting on another continent. They must wring their hangs in agonized guilt and indecision about whether to use styrofoam, paper, or a washable coffee cup. They must feel tremendous guilt whenever they discard a scrap of soiled napkin instead of recycling it. Environmentalist parents must feel terrible pangs of guilt at using disposable diapers (or they suffer by using cloth ones: either way, I am pleased by the thought of their discomfort). Likewise, when an Objectivist emails a vandalized picture of an apostate like Alan Greenspan to a friend they must be conflicted--wait, no, there's a fair use exception! Thank Rand for the State and its wise laws!

One striking feature of Objectivism is it outspoken support of intellectual property. A key scene in Atlas Shrugged is where metallurgist genius Hank Rearden is compelled by the government to hand over his intellectual rights to his innovative metal alloy, and Ayn Rand acted in kind. She passionately used the copyright on her works to bar people from forming "John Galt Societies", citing that the name John Galt is her creation and her intellectual property.

For a person bent on propagating her ideas to the maximum extent possible, this would seem eerily counterproductive. Stealing an object from someone is obviously depriving the original owner of his property, but copying it isn't. It may or may not be harmful to potential income, but that income remains potential, in the realm of the unprovable. This is a debate that incites extreme passion.

While Objectivists, libertarians and conservatives strongly agree on the principle of physical property rights, the picture is much more divided when it comes to 'intellectual property', a catch-all phrase for several different items, including patents, copyright and trademarks. In a landmark essay by Stephan Kinsella, Against Intellectual Property, argues that 'Intellectual property' is not only meaningless and harmful, it is in direct violation of the general principle of private property, and primarily constitutes a state-sanctioned creation of artificial scarcity, leading ultimately to poverty, not job creation and wealth.

The wider libertarian movement accepted the argument, put it into action (see www.mises.org/books) and moved on. Objectivists, on the other hand, maintain that what Ayn Rand spoke and practiced on the subject remains the unalterable truth.